Brief for the Cato Institute and the National Ass'n of Reversionary Property Owners as Amici Curiae in Support of Petitioner, Ministerio Roca Solida, Inc. v. United States, No. 14-1413

8/20/2019 Brief for the Cato Institute and the National Ass'n of Reversionary Property Owners as Amici Curiae in Support of …

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No. 14-1413

IN THE

Supreme Court of the United States

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

A(800) 274-3321 • (800) 359-6859

BRIEF FOR THE CATO INSTITUTE

AND THE NATIONAL ASSOCIATION OF

REVERSIONARY PROPERTY OWNERS

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

260207

MINISTERIO ROCA SOLIDA, INC.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

M ARK F. (THOR) HEARNE, IICounsel of Record

STEPHEN S. D AVIS A RENT FOX, LLP1717 K Street, NW

Washington, DC 20036(202) [email protected]

Counsel for Amici Curiae

ILYA SHAPIROC ATO INSTITUTE1000 Massachusetts Avenue, NW

Washington, DC 20001(202) 842-0200

Counsel for Amicus CuriaeCato Institute


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TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . .1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . .3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I. This Court should grant certiorar i toaf firm the foundational principle that self-executing provisions of our Constitutioncannot be abrogated by statute. . . . . . . . . . . . . . .3

A. The Fifth Amend ment is a self-executing constitutionally-guaranteedright to compensation not dependentupon any congressional waiver ofsovereign immunity. . . . . . . . . . . . . . . . . . . . .3

B. Congr ess may not abrogate bystatute a right guaranteed by theConstitution.. . . . . . . . . . . . . . . . . . . . . . . . . . .6

II. Granting certiorari allows this Court toaf firm that Tohono does not (and cannot)apply to claims in which a person is vindicatinga self-executing constitutional right.. . . . . . . . . . .8


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Table of Contents

Page

III. Certiorari should be granted because§ 1500 raises a “substantial constitutionalquestion.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

A. S e c t i o n 1 5 0 0 i s a “ j u d i c i a lembarrassment, a monument to

cynicism” and justifies the conclusionthat “the law is an ass.” . . . . . . . . . . . . . . . .10

B. The government uses §1500 to denymeritorious claims against the federalgovernment. . . . . . . . . . . . . . . . . . . . . . . . . . .13

C. When § 1500 abrogates constitutionally-guaranteed r ights th is Courtcannot avoid its duty to uphold theConstitution hoping Congress will

repeal the offending statute. . . . . . . . . . . . .14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


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TABLE OF CITED AUTHORITIES

Page

CASES

Arkansas Game and Fish Comm’n v.United States,133 S. Ct. 511 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Beers v. Arkansas,61 U.S. 527 (1857). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Central Pines Land Co. v. United States,687 F.3d 1360 (Fed. Cir. 2012) . . . . . . . . . . . . . . . . . .13

Dico, Inc. v. United States,48 F.3d 1199 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . .13

Entick v. Carrington,95 Eng. Rep. 807 (C.P. 1765) . . . . . . . . . . . . . . . . . . . . .3

First English Evangelical Lutheran v. Los Angeles,482 U.S. 304 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Horne v. Department of Agriculture,2015 WL 2473384 (2015) . . . . . . . . . . . . . . . . . . . . . . . .6

Jacobs v. United States,290 U.S. 13 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Johns-Manville Corp. v. United States,855 F.2d 1556 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . .13


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iv

Cited Authorities

Page

Keene Corp. v. United States,508 U.S. 200 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Loveladies Harbor, Inc. v. United States,27 F.3d 1545 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . .13

Lynch v. Household Finance Corp.,405 U.S. 538 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Marbury v. Madison,5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14

Marvin M. Brandt Revocable Trust v.United States,134 S. Ct. 1257 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Ministerio Roca Solida v. United States,

778 F.3d 1351 (Fed. Cir. 2015). . . . . . . . . . . . . . . . . .2, 9

Monongahela Nav. Co. v. United States,148 U.S. 312 (1893) . . . . . . . . . . . . . . . . . . . . .4, 6, 15, 16

Olson v. United States,292 U.S. 246 (1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Phelps v. United States,274 U.S. 341 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

San Diego Gas & Elec. Co. v. San Diego,450 U.S. 621 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5


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Cited Authorities

Page

Seaboard Air Line R. Co. v. United States,261 U.S. 299 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Trusted Integration, Inc. v. United States,659 F.3d 1159 (Fed. Cir. 2011). . . . . . . . . . . . . . . . . . .13

United States v. Dickinson,331 U.S. 745 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

United States v. James Daniel Good Real Property,510 U.S. 43 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

United States v. Jones,132 S. Ct. 945 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . .3

United States v. Tohono O’Odham Nation,

131 S. Ct. 1723 (2011) . . . . . . . . . . . . . . . . . . . . . passim

STATUTES AND OTHER AUTHORITIES

Fifth Amendment to the U.S. Constitution . . . . . passim

28 U.S.C. § 1346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

28 U.S.C. § 1500. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1


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Cited Authorities

Page

139 CONG. REC. S10, 383 (daily ed. Aug. 4, 1993) . . . . . .12

143 CONG. REC. S10, 428-03 (Oct. 6, 1997). . . . . . . . . . . .12

CONG. GLOBE, 40TH CONG., 2D SESS., 2769 (1868). . . . . . . .2

David Schwartz, Section 1500 of the JudicialCode and Duplicative Suits against theGovernment and Its Agents, GEORGETOWN L AW JOURNAL, Vol. 55, No. 4 (March 1967) . . . . . . . .12

Douglas W. Kmiec, The Original Understandingof the Takings Clause Is Neither Weak NorObtuse, 88 COLUM. L. REV . 1630 (1988) . . . . . . . . . . . .5

Emily S. Bremer and Jonathan R. Siegel,The Need to Reform 28 U.S.C. §1500 ,

A DMINISTRATIVE CONFERENCE OF THE UNITED STATES REPORT (2012). . . . . . . . . . . . . . . . . . 9-10, 11, 12

H. REPT. NO. 105-424, H.R. 992, 105TH CONG.,2d Sess. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

J A M E S M A DI S ON (S AU L K. P A DOV ER , ed.),THE COMPLETE M ADISON (1953). . . . . . . . . . . . . . . . . . .4

J A ME S W. ELY , JR., THE GUARDIAN OF E VERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (2d ed. 1998). . . . . . . . . . . . . . . . .4


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Cited Authorities

Page

Kenneth Culp Davis, Suing the Governmentby Falsely Pretending to Sue an Of ficer , 29U. CHI. L. REV . 435 (1962) . . . . . . . . . . . . . . . . . . . . . .12

Payson R. Peabody, et al., A Confederate Ghostthat Haunts the Federal Courts: The Case for

Repeal of 28 U.S.C. §1500, FEDERAL CIRCUIT B AR JOURNAL, Vol. 4, No. 2 (Summer 1994) . . . . . . . .12

S. REPT. NO. 105-242, 105TH CONG., 2d Sess. . . . . . . . . .13


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INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policyresearch foundation dedicated to advancing the principlesof individual liberty, free markets, and limited government.This case is important to Cato because it involvesinterpretations of complicated statutory schemes thatmay undermine constitutional protections for foundationalproperty rights.

The National Association of Reversionary PropertyOwners (NARPO) is a non-profit educational foundationassisting property owners in the education and defense oftheir property rights, particularly ownership of propertysubject to railroad right-of-way easements. See, e.g.,

Marvin M. Brandt Revocable Trust v. United States, 134S. Ct. 1257 (2014) (NARPO as amicus curiae).

BACKGROUND

In United States v. Tohono O’Odham Nation, 131 S.Ct. 1723 (2011), this Court considered 28 U.S.C. §1500,a Civil War-era statute intended to relieve the UnitedStates from responding to duplicative litigation in multiple

1. No party’s counsel has authored this brief in whole orin part, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief. Noperson other than amici, their members, or their counsel made a

monetary contribution to its preparation or submission. See Rule37.6. Amici curiae provided ten days notice of the filing of this briefto all parties. See Rule 37.2. Both parties have consented to thefiling of this brief and such consents are being submitted herewith.


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courts.2 The Tohono majority found that §1500 barred theCourt of Federal Claims (CFC) from taking jurisdictionof a matter when another case arising from the sameoperative facts was already pending at the time the case

was filed in the CFC. 131 S. Ct. at 1731-32. Importantly,§1500 was never intended to be a device allowing thefederal government to escape its lawful obligation bydenying persons the ability to pursue a meritorious claimagainst the United States.

But, because the CFC is a court of limited jurisdictionunable to entertain equitable, tort and other claims,the government has exploited §1500 and Tohono as aprocedural device to deny owners the ability to pursueotherwise meritorious claims. In combination with otherprovisions of the Tucker Act,3 the government is using§1500 not as a shield to avoid duplicative litigation butas a sword to escape its statutory and constitutionalobligations. Judge Taranto noted how §1500 gives rise to“a substantial constitutional question.” Ministerio Roca

Solida v. United States, 778 F.3d 1351, 1357 (Fed. Cir.2015) (Taranto, J., concurring). Members of this Court,numerous lower federal judges, senators, and academicsdescribe §1500 as a “purposeless” statute that creates a“judicial quagmire.”

2. Vermont Senator George F. Edmunds, the sponsor of§1500, explained, “The object is to put that class of persons[bringing claims for confiscated cotton] to their election either

to leave the Court of Claims or to leave the other courts.” CONG.GLOBE, 40TH CONG., 2D SESS., 2769 (1868).

3. 28 U.S.C. §1346, et seq.


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Roca Solida’s petition for certiorari provides thisCourt the opportunity to cabin §1500 and confirm that thisCourt’s holding in Tohono applies only to congressionally-created claims and not to Fifth Amendment takings claimsarising directly under the Constitution.

SUMMARY OF ARGUMENT

This Court should grant certiorari to clarify the point

that Tohono does not (and cannot) be read to hold §1500may bar owners from vindicating their constitutionally-guaranteed right to just compensation. This is becausethe Fifth Amendment right of just compensation is self-executing and requires no waiver of sovereign immunity.

ARGUMENT

I. This Court should grant certiorari to affirmthe foundational principle that self-executingprovisions of our Constitution cannot be abrogated

by statute.

A. The Fifth Amendment is a self-executingconstitutionally-guaranteed right tocompensation not dependent upon anycongressional waiver of sovereign immunity.

Roca Solida’s (and every other owner’s) right to besecure in their property is one of the primary objects for

which the national government was formed. In United States v. Jones, 132 S. Ct. 945, 949 (2012), this Court

recalled Lord Camden’s holding in Entick v. Carrington,95 Eng. Rep. 807 (C.P. 1765), which provided: “The great


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end for which men entered into society was to secure theirproperty.”4

To this end, the Fifth Amendment provides: “Noperson shall…be deprived of life, liberty, or property,

without due process of law; nor shall private property betaken for public use, without just compensation.”

This Court held, “In any society the fullness and

suf ficiency of the securities which surround the individualin use and enjoyment of his property constitute oneof the most certain tests of the character and value ofgovernment.” Monongahela Nav. Co. v. United States,148 U.S. 312, 324 (1893) (quoted and followed by Olson v.United States, 292 U.S. 246, 254 (1934)); see also Lynch v.

Household Finance Corp., 405 U.S. 538, 552 (1972) (“[T]hedichotomy between personal liberties and property rightsis a false one. Property does not have rights. People haverights…. That rights in property are basic civil rights haslong been recognized.”); United States v. James Daniel

Good Real Property, 510 U.S. 43, 61 (1993) (“an essentialprinciple: Individual freedom finds tangible expression inproperty rights.”). Justice Brennan explained:

As soon as private property has been taken, whether through formal condemnation

4. Madison recognized “Government is instituted to protectproperty of every sort….This being the end of government, thatalone is a just government, which impartially secures to everyman, whatever is his own….” J AMES M ADISON (S AUL K. P ADOVER,

ed.), THE COMPLETE M ADISON (1953), pp. 267-68 (remarks publishedin N ATIONAL G AZETTE, Mar. 29, 1792). See also J AMES W. ELY , JR.,THE GUARDIAN OF E VERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (2d ed. 1998).


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proceedings, occupancy, physical invasion, orregulation, the landowner has already suffereda constitutional violation, and the self-executingcharacter of the constitutional provision withrespect to compensation is triggered. ThisCourt has consistently recognized that the

just compensation requirement in the Fifth Amendment is not precatory: once there is a“taking” compensation must be awarded.

San Diego Gas & Elec. Co. v. San Diego,450 U.S. 621, 654 (1981). 5

Justice Brennan’s view in San Diego Ga s wasexpressed in a dissent. But in First English Evangelical

Lutheran v. Los Angeles, 482 U.S. 304, 315-16 (1987), thisCourt af firmed Justice Brennan’s view holding the JustCompensation Clause is “self-executing” and does not“depend on the good graces of Congress.”6

Indeed, before San Diego Gas and First English theCourt found:

whether the theory…be that there was a takingunder the Fifth Amendment, and that thereforethe Tucker Act may be invoked because itis a claim founded upon the Constitution, orthat there was an implied promise by the

5. Brennan, J., dissenting on other grounds (internal citationsand quotations omitted, emphasis added).

6. See also Douglas W. Kmiec, The Original Understandingof the Takings Clause Is Neither Weak Nor Obtuse, 88 COLUM. L.REV . 1630, 1654-1658 (1988).


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Government to pay for it, is immaterial. Ineither event, the claim traces back to the

prohibition of the Fifth Amendment….

United States v. Dickinson,331 U.S. 745, 748 (1947)

(emphasis added).

And, even before that, this Court noted the fundamental

principle that the Fifth Amendment allows:

the public to take whatever may be necessaryfor its uses; while, on the other hand, it preventsthe public from loading upon one individualmore than his just share of the burdens ofgovernment, and says that when he surrendersto the public something more and different fromthat which is exacted from other members ofthe public, a full and just equivalent shall bereturned to him.

Monongahela, 148 U.S. at 325.

When the government takes property it ha s a“categorical duty” to pay just compensation. See ArkansasGame and Fish Comm’n v. United States, 133 S. Ct. 511,518 (2012); see also Horne v. Department of Agriculture,2015 WL 2473384 (2015), slip op., p. 4.

B. Congress may not abrogate by statute a rightguaranteed by the Constitution.

Because Roca Solida’s right to just compensationarises directly from the Constitution, Congress cannot


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abrogate this right by statute. See Jacobs v. United States,290 U.S. 13, 17 (1933) (“the right to just compensationcould not be taken away by statute or be qualified by theomission of a provision for interest”) (citing Seaboard Air

Line R. Co. v. United States, 261 U.S. 299, 306 (1923), and Phelps v. United States, 274 U.S. 341, 343-44 (1927)).

This principle goes back to Marbury v. Madison whenChief Justice Marshall explained:

The powers of the legislature are defined,and limited; and that those limits may notbe mistaken, or forgotten, the constitution is

wr itten….It is a proposition too plain to becontested, that the constitution controls anylegislative act repugnant to it; or, that thelegislature may alter the constitution by anordinary act. Between these alternatives thereis no middle ground. The constitution is eithera superior, paramount law, unchangeable by

ordinary means, or it is on a level with ordinarylegislative acts, and like other acts, is alterable

when the legislature shall please to alter it. Ifthe former part of the alternative be true, thena legislative act contrary to the constitution isnot law: if the latter part be true, then writtenconstitutions are absurd attempts, on the partof the people, to limit a power, in its own natureillimitable.

Marbury v. Madison,

5 U.S. 137, 176-77 (1803).


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Congress can neither shield itself from its preeminentconstitutional obligation to justly compensate owners bylegislative fiat nor abrogate constitutional guarantees byadopting a legislative scheme that prevents Roca Solida(or any other property owner) from vindicating theirconstitutional right to just compensation.

II. Granting certiorari allows this Court to af firm

that Tohono does not (and cannot) apply to claims

in which a person is vindicating a self-executingconstitutional right.

There is a significant difference between an action to vindicate a constitutionally-established right and a suitbased on a congressionally-created claim of action.

Roca Solida’s appeal provides this Court theopportunity to clarify that Tohono (which involvedactions requiring a congressional waiver of sovereignimmunity) cannot apply to self-executing constitutional

rights such as Roca Solida’s Fifth Amendment claim for just compensation.

The majority in Tohono described the category ofactions to which its holding applied as those in which“Congress has permitted claims against the United Statesfor monetary relief in the CFC,” further noting that forthese claims, “relief is available by grace and not by right.”131 S. Ct. at 1731 (quoting Beers v. Arkansas, 61 U.S. 527,529 (1857) (“as this permission is altogether voluntary onthe part of the sovereignty, it follows that it may prescribe

the terms and conditions on which it consents to be sued,and the manner in which the suit shall be conducted”)).


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But Roca Solida’s claim is very different. Roca Solida’sclaim for compensation was not created by Congress,but arises directly from the Fifth Amendment. Thus,the government’s obligation to justly compensate RocaSolida is not “voluntary” and does not require a separatecongressional waiver of sovereign immunity.

III. Certiorari should be granted because §1500 raises

a “substantial constitutional question.”

Judge Taranto observed, “A substantial constitutionalquestion would be raised if federal statutes forceda claimant to choose between securing judicial justcompensation for a taking of property and pursuingconstitutional and other legal claims that challenge, and ifsuccessful could reverse, the underlying action alleged toconstitute a taking.” Roca Solida, 778 F.3d at 1360. JudgeTaranto is not alone in his warning that §1500 invitesserious constitutional concerns.

Among all the provisions in the United States Code§1500 is remarkable because it is almost universally reviled by members of this Court, lower federal courts,senators, law professors and academics. These authoritiesare united in their view that §1500 is “anachronistic,”“unfair,” “confusing,” “irrational,” “purposeless,”“unjust,” and “ill-conceived.” Further, §1500 creates a“trap for unwary” and “unsuspecting” citizens because itis a “badly drafted statute,” “serves no useful purpose,”and creates a “judicial quagmire” that is an “obstacle”to “meritorious claims against the federal government.”7

7. Quotations and authorities from Emily S. Bremerand Jonathan R. Siegel, The Need to Reform 28 U.S.C. §1500,


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The issue is not whether §1500 is a pointlessdysfunctional statute that “wreaks havoc” and unjustlydeprives citizens of meritorious claims; everyone agrees§1500 does. The only question is whether the Court orCongress should fi x this constitutional problem. GrantingRoca Solida’s petition for certiorari allows this Courtto address this problem when the statute abrogates aperson’s Fifth Amendment right to be justly compensated.This Court has previously declined to overturn §1500

outright, preferring instead to defer to Congress the taskof remedying the wrongs wrought by §1500. See KeeneCorp. v. United States, 508 U.S. 200, 217 (1993). ThisCourt should roll back Tohono’s application and hold §1500cannot bar claims based upon self-executing provisions ofour Constitution.

A. Section 1500 is a “judicial embarrassment,a monument to cynicism” and justifies theconclusion that “the law is an ass.”8

A report prepared for the Administrative Conferencefor the United States notes:

Section 1500 is unfair to plaintiffs suing theUnited States. The statute leads to dismissalof cases for reasons unrelated to their merits,

while serving little valid purpose…. The statutehas been strongly criticized by judges, lawyers,and academics. It causes results that are unjustand irrational. It should be repealed.9

A DMINISTRATIVE CONFERENCE OF THE UNITED STATES REPORT, pp.34-35 (2012).

8. Bremer, supra n. 7, at 2.

9. Id.


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The report continues:

Federal judges have characterized [§1500]as a “trap for the unwary” that has “outlivedits purpose.” They have characterized thedismissals Section 1500 compels as “neitherfair nor rational” and have critiqued “theinjustice that often results in the application ofthis outdated and ill-conceived statute.” They

have referred to Section 1500’s “awkwardformulation,” calling it “a badly draftedstatute,” and suggested that it would be“salutary” to repeal or amend it. They havecriticized the government for using the statuteto lay traps for unsuspecting plaintiffs. One

judge even remarked that the statute would justify the famous conclusion that “the law isan ass.” Scholars have been equally criticalof Section 1500, and have called for its repealor reform since as early as 1967. And some

members of Congress have tried to repealthe statute. These efforts apparently failedonly because the repeal proposal was bundled

with more controversial changes to the CFC’s jurisdiction.10

The report notes “[g]overnment lawyers can anddo give sustained attention to contriving technical waysto defeat plaintiffs…government counsel, driven by alawyer’s natural desire to win cases, persuade courts tocreate and maintain technical complexities, which they

10. Id. at 6 (footnotes omitted).


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then use to win more cases.”11 Section 1500 has createda “jurisdictional quagmire [and] continues to wreakhavoc….Few issues in Federal Circuit’s contemporary

jurisprudence have caused greater confusion for the benchand bar.”12

Justice Stevens called for Congress to repeal §1500.The Senate Judiciary Committee found §1500 has caused“much wasteful litigation over nonmeritorious issue.”13

The Committee concluded that eliminating §1500 would“significantly improve the administration of justice atthe [CFC]” because “Section 1500 today serves no usefulpurpose and is a serious trap for the unsophisticatedlawyer or plaintiff.”14 The Senate Judiciary Committeefurther stated that §1500 to be a purposeless anachronisticstatute:

11. Id. at 10-11 (quoting Kenneth Culp Davis, Suing theGovernment by Falsely Pretending to Sue an Of ficer , 29 U. CHI.L. REV . 435, 440-41 (1962)).

12. Payson R. Peabody, et al., A Confederate Ghost that Haunts the Federal Courts: The Case for Repeal of 28 U.S.C. §1500,FEDERAL CIRCUIT B AR JOURNAL, Vol. 4, No. 2 (Summer 1994), pp. 96,110. See also David Schwartz, Section 1500 of the Judicial Codeand Duplicative Suits against the Government and Its Agents,GEORGETOWN L AW JOURNAL, Vol. 55, No. 4 (March 1967), p. 599.

13. Senate Judiciary Committee Chairman Orrin Hatch (R.Ut.), 143 CONG. REC. S10, 428-03 (Oct. 6, 1997) (advocating repealof §1500). See also Senate Judiciary Committee Chairman HowellHeflin (D. La.), 139 CONG. REC. S10, 383 (daily ed. Aug. 4, 1993).

14. Citing testimony of CFC Chief Judge Loren Smith,Hearings before the House Subcommittee on Immigration andClaims on H.R. 992, House Committee on the Judiciary, H. REPT.NO. 105-424, H.R. 992, 105TH CONG., 2d Sess., p. 11.


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[O]ver the last century the courts have adoptedprocedural rules and doctrines…which rendersection 1500 obsolete. Since it has outlived itsusefulness, and serves primarily as an obstacleto property rights claimants, the Committeebelieves that section 1500 should be repealed.15

Members of the Federal Circuit believe §1500 has“become a judicial embarrassment, a monument to

cynicism, [and] ‘is now so riddled with unsupportableloopholes that it has lost its predictability and peoplecannot rely on it to order their affairs.’”16

B. The government uses §1500 to deny meritoriousclaims against the federal government.

Section 1500 was never intended to prevent meritoriousclaims, yet the government uses §1500 to unjustly preventindividuals, businesses, and especially Indian tribes from

vindicating otherwise meritorious claims. See, e.g., Dico,

Inc. v. United States, 48 F.3d 1199, 1204 (Fed. Cir. 1995)(denying compensation for environmental clean-up costsmandated by EPA); Trusted Integration, Inc. v. United

States, 659 F.3d 1159, 1163-64 (Fed.Cir.2011) (denyingcompensation for mineral rights taken because mining

was prohibited due to military bombing); Central Pines Land Co. v. United States, 687 F.3d 1360 (Fed. Cir. 2012),(denying compensation for mineral rights taken by thegovernment).

15. Senate Comm. on the Judiciary, S. REPT. NO. 105-242,

105TH CONG., 2d Sess., p. 17.

16. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545,1558 (Fed. Cir. 1994) (Mayer, J., dissenting); see also Johns- Manville Corp. v. United States, 855 F.2d 1556, 1568 (Fed. Cir.1988).


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C. When §1500 abrogate s constitutiona lly-guaranteed rights this Court cannot avoid

its duty to uphold the Constitution hopingCongress will repeal the offending statute.

When a statutory scheme prevents a person from vindicating his or her constitutionally-guaranteed rightto be justly compensated this Court must act. While itmay be possible for this Court to defer to Congress the

job of fi xing §1500 as applied to congressionally-createdclaims against the government, this Court may not deferits duty to limit this statute when it denies Roca Solidaits constitutional right to just compensation. Chief JusticeMarshall explained this point:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must ofnecessity expound and interpret that rule. Iftwo laws conflict with each other, the courts

must decide on the operation of each. So if a lawbe in opposition to the constitution; if both thelaw and the constitution apply to a particularcase, so that the court must either decide thatcase conformably to the law, disregarding theconstitution; or conformably to the constitution,disregarding the law; the court must determine

which of these conflicting rules governs thecase. This is of the very essence of judicial duty.If then the courts are to regard the constitution;and the constitution is superior to any ordinary

act of the legislature; the constitution, and notsuch ordinary act, must govern the case to

which they both apply.

Marbury, 5 U.S. at 177-78.


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Monongahela arose when the United States exercisedits power of eminent domain to take locks and damsowned and built by Monongahela Company and alsoMonongahela’s franchisee to charge tolls for the useof the lock and dam. The United States argued thatCongress, not the judiciary, could determine the amountof compensation the United States would pay for theproperty it had taken.

This Court rejected this notion and began by noting,“Congress has supreme control over the regulation ofcommerce, but if, in exercising that supreme control,it deems it necessary to take private property, then itmust proceed subject to the limitations imposed by thisfifth amendment, and can take only on payment of justcompensation.” Monongahela 148 U.S. at 336. But theUnited States not only wanted to take MonongahelaCompany’s property but also wanted to define the measureof “just compensation” the owner would be paid. ThisCourt emphatically rejected that proposition:

By this legislation congress seems to haveassumed the right to determine what shallbe the measure of compensation. But thisis a judicial, and not a legislative, question.The legislature may determine what privateproperty is needed for public purposes; that is aquestion of a political and legislative character.But when the taking has been ordered, thenthe question of compensation is judicial. Itdoes not rest with the public, taking the

property, through congress or the legislature,its representative, to say what compensationshall be paid, or even what shall be the rule of


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compensation. The constitution has declaredthat just compensation shall be paid, and theascertainment of that is a judicial inquiry.

Monongahela, 148 U.S. at 327.

Our Constitution does not grant Congress authorityto take private property and, in derogation of the Fifth

Amendment guarantee of “just compensation,” adopt a

statutory scheme that operates to deny an owner’s abilityto vindicate their right to be justly compensated.

CONCLUSION

The government used §1500 to deny Roca Solida theability to vindicate its Fifth Amendment right to be justlycompensated. This Court should grant certiorari to holdthat neither §1500 nor this Court’s holding in Tohono allows such an abrogation of constitutional protections.

Respectfully submitted,

M ARK F. (THOR) HEARNE, IICounsel of Record

STEPHEN S. D AVIS A RENT FOX, LLP1717 K Street, NW

Washington, DC 20036(202) [email protected]

Counsel for Amici Curiae

ILYA SHAPIROC ATO INSTITUTE1000 Massachusetts Avenue, NW

Washington, DC 20001(202) 842-0200

Counsel for Amicus CuriaeCato Institute

Documents

Brief for the Cato Institute and the National Ass'n of Reversionary Property Owners as Amici Curiae in Support of Petitioner, Ministerio Roca Solida, Inc. v. United States, No. 14-1413